N.Y. Comp. Codes R. & Regs. tit. 9 § 517.5

Current through Register Vol. 46, No. 25, June 18, 2024

Section 517.5 - Privileges

(a) General rule.

(1) A person may not claim a privilege with respect to any matter except as required by or provided for in:

(i) the Constitution of the United States as applied to members of the Armed Forces;

(ii) the Constitution of the State of New York;

(iii) an Act of Congress applicable to trials by courts-martial;

(iv) New York Military Law;

(v) these rules or this Chapter; or

(vi) the principles of common law generally recognized in the trial of criminal cases in the United States district courts pursuant to rule 501 of the Federal Rules of Evidence insofar as the application of such principles in trials by courts-martial is practicable and not contrary to or inconsistent with the State code, these rules, or this Chapter.

(2) A claim of privilege includes, but is not limited to, the assertion by any person of a privilege to:

(i) refuse to be a witness;

(ii) refuse to disclose any matter;

(iii) refuse to produce any object or writing; or

(iv) prevent another from being a witness or disclosing any matter or producing any object or writing.

(3) The term person includes an appropriate representative of the Federal Government, a State, or political subdivision thereof, or any other entity claiming to be the holder of a privilege.

(4) Notwithstanding any other provision of these rules, information not otherwise privileged does not become privileged on the basis that it was acquired by a medical officer or civilian physician in a professional capacity.

(b) Lawyer-client privilege.

(1) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:

(i) between the client or the client's representative and the lawyer or the lawyer's representative;

(ii) between the lawyer and the lawyer's representative;

(iii) by the client or the client's lawyer to a lawyer representing another in a matter of common interest;

(iv) between representatives of the client or between the client and a representative of the client; or

(v) between lawyers representing the client.

(2) Definitions. As used in this subdivision:

(i) A client is a person, public officer, corporation, association, organization, or other entity, either public or private, who receives professional legal services from a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.

(ii) A lawyer is a person authorized, or reasonably believed by the client to be authorized, to practice law; or a member of the Armed Forces or State organized militia detailed, assigned, or otherwise provided to represent a person in a court-martial case or in any military investigation or proceeding. The term lawyer does not include a member of the Armed Forces or State organized militia serving in a capacity other than as a judge advocate, legal officer, or law specialist, unless the member:

(a) is detailed, assigned, or otherwise provided to represent a person in a court-martial case or in any military investigation or proceeding;

(b) is authorized by the Armed Forces or State organized militia, or reasonably believed by the client to be authorized, to render professional legal services to members of the Armed Forces or State organized militia; or

(c) is authorized to practice law and renders professional legal services during off-duty employment.

(iii) A representative of a lawyer is a person employed by or assigned to assist a lawyer in providing professional legal services.

(iv) A communication is confidential if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonable necessary for the transmission of the communication.

(3) Who may claim the privilege. The privilege may be claimed by the client, the guardian or conservator of the client, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The lawyer or the lawyer's representative who received the communication may claim the privilege on behalf of the client. The authority of the lawyer to do so is presumed in the absence of evidence to the contrary.

(4) Exceptions. There is no privilege under this subdivision under the following circumstances:

(i) Crime or fraud. If the communication clearly contemplated the future commission of a fraud or crime or if services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.

(ii) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction.

(iii) Breach of duty by lawyer or client. As to communication relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer.

(iv) Document attested by lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness.

(v) Joint clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.

(c) Communications to clergy.

(1) General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman or to a clergyman's assistant, if such communication is made either as a formal act of religion or as a matter of conscience.

(2) Definitions. As used in this subdivision:

(i) A clergyman is a minister, priest, rabbi, chaplain, or other similar functionary of a religious organization, or an individual reasonably believed to be so by the person consulting the clergyman.

(ii) A communication is confidential if made to a clergyman in the clergyman's capacity as a spiritual adviser to a clergyman's assistant in the assistant's official capacity and is not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the purpose of the communication or to those reasonably necessary for the transmission of the communication.

(3) Who may claim the privilege. The privilege may be claimed by the person, by the guardian, or conservator, or by a personal representative if the person is deceased. The clergyman or clergyman's assistant who received the communication may claim the privilege on behalf of the person. The authority of the clergyman or clergyman's assistant to do so is presumed in the absence of evidence to the contrary.

(d) Husband-wife privilege.

(1) Spousal incapacity. A person has a privilege to refuse to testify against his or her spouse.

(2) Confidential communication made during marriage.

(i) General rule of privilege. A person has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, any confidential communication made to the spouse of the person while they were husband and wife and not separated as provided by law.

(ii) Definition. A communication is confidential if made privately by any person to the spouse of the person and is not intended to be disclosed to third persons other than those reasonably necessary for transmission of the communication.

(iii) Who may claim the privilege. The privilege may be claimed by the spouse who made the communication or by the other spouse on his or her behalf. The authority of the latter spouse to do so is presumed in the absence of evidence of a waiver. The privilege will not prevent disclosure of the communication at the request of the spouse to whom the communication was made if that spouse is an accused regardless of whether the spouse who made the communication objects to its disclosure.

(3) Exceptions.

(i) Spousal incapacity only. There is no privilege under paragraph (1) of this subdivision when, at the time the testimony of one of the parties to the marriage is to be introduced in evidence against the other party, the parties are divorced or the marriage has been annulled.

(ii) Spousal incapacity and confidential communications. There is no privilege under paragraph (1) or (2) of this subdivision:

(a) in proceedings in which one spouse is charged with a crime against the person or property of the other spouse or a child of either, or with a crime against the person or property of a third person committed in the course of committing a crime against the other spouse;

(b) when the marital relationship was entered into with no intention of the parties to live together as spouses, but only for the purpose of using the purported marital relationship as a sham, and with respect to the privilege in paragraph (1) of this subdivision, the relationship remains a sham at the time the testimony or statement of one of the parties is to be introduced against the other; or with respect to the privilege in paragraph (2) of this subdivision, the relationship was a sham at the time of the communication.

(e) Classified information.

(1) General rule of privilege. Classified information is privileged from disclosure if disclosure would be detrimental to the national security.

(2) Definitions. As used in this subdivision:

(i) Classified information means any information or material that has been determined by the United States Government pursuant to an executive order, statute, or regulation, to require protection against unauthorized disclosure for reasons of national security, and any restricted data, as defined in 42 U.S.C. section 2014(y).

(ii) National security means the national defense and foreign relations of the United States.

(3) Who may claim the privilege. The privilege may be claimed by the head of the executive or military department or government agency concerned based on a finding that the information is properly classified and that disclosure would be detrimental to the national security. A person who may claim the privilege may authorize a witness or trial counsel to claim the privilege on his or her behalf. The authority of the witness or trial counsel to do so is presumed in the absence of evidence to the contrary.

(4) Action prior to referral of charges. Prior to referral of charges, the convening authority shall respond in writing to a request by the accused for classified information if the privilege in this subdivision is claimed for such information. The convening authority may:

(i) delete specified items or classified information from the documents made available to the accused;

(ii) substitute a portion or summary of the information for such classified documents;

(iii) substitute a statement admitting relevant facts that the classified information would tend to prove;

(iv) provide the document subject to conditions that will guard against the compromise of the information disclosed to the accused; or

(v) withhold disclosure if actions under subparagraphs (i) through (iv) of this paragraph cannot be taken without causing identifiable damage to the national security.

Any objection by the accused to withholding of information or to the conditions of disclosure shall be raised through a motion for appropriate relief at a pretrial session.

(5) Pretrial session. At anytime after referral of charges and prior to arraignment, any party may move for a session under Military Law section 130.39(a) to consider matters relating to classified information that may arise in connection with the trial. Following such motion or sua sponte, the military judge promptly shall hold a session under Military Law section 130-39(a) to establish the timing of requests for discovery, the provision of notice under paragraph (8) of this subdivision, and the initiation of the procedure under paragraph (9) of this subdivision. In addition, the military judge may consider any other matters that relate to classified information or that may promote a fair and expeditious trial.

(6) Action after referral of charges. If a claim of privilege has been made under this subdivision with respect to classified information that apparently contains evidence that is relevant and necessary to an element of the offense or a legally cognizable defense and is otherwise admissible in evidence in the court-martial proceeding, the matter shall be reported to the convening authority. The convening authority may:

(i) institute action to obtain the classified information for use by the military judge in making a determination under paragraph (9) of this subdivision;

(ii) dismiss the charges;

(iii) dismiss the charges or specifications or both to which the information relates; or

(iv) take such action as may be required in the interests of justice.

If, after a reasonable period of time, the information is not provided to the military judge in circumstances where proceeding with the case without such information would materially prejudice a substantial right of the accused, the military judge shall dismiss the charges or specifications or both to which the classified information relates.

(7) Disclosure of classified information to the accused.

(i) Protective order. If the government agrees to disclose classified information to the accused, the military judge, at the request of the government, shall enter an appropriate protective order to guard against the compromise of the information disclosed to the accused. The terms of any such protective order may include provisions:

(a) prohibiting the disclosure of the information except as authorized by the military judge;

(b) requiring storage of material in a manner appropriate for the level of classification assigned to the documents to be disclosed;

(c) requiring controlled access to the material during normal business hours and at other times upon reasonable notice;

(d) requiring appropriate security clearances for persons having a need to examine the information in connection with the preparation of the defense;

(e) requiring the maintenance of logs regarding access by all persons authorized by the military judge to have access to the classified information in connection with the preparation of the defense;

(f) regulating the making and handling of notes taken from material containing classified information; or

(g) requesting the convening authority to authorize the assignment of government security personnel and the provision of government storage facilities.

(ii) Limited disclosure. The military judge, upon motion of the government, shall authorize:

(a) the deletion of specified items of classified information from documents to be made available to the defendant;

(b) the substitution of a portion or summary of the information for such classified documents; or

(c) the substitution of a statement admitting relevant facts that the classified information would tend to prove, unless the military judge determines that disclosure of the classified information itself is necessary to enable the accused to prepare for trial. The government's motion and any materials submitted in support thereof shall, upon request of the government, be considered by the military judge in camera and shall not be disclosed to the accused.

(iii) Disclosure at trial of certain statements previously made by a witness:

(a) Scope. After a witness called by the government has testified on direct examination, the military judge, on motion of the accused, may order production of statements in the possession of the State under N.Y.R.C.M. 914. This provision does not preclude discovery or assertion of a privilege otherwise authorized under these rules or this Chapter.

(b) Closed session. If the privilege in this subdivision is invoked during consideration of a motion under N.Y.R.C.M. 914, the government may deliver such statement for the inspection only by the military judge in camera and may provide the military judge with an affidavit identifying the portions of the statement that are classified and the basis for the classification assigned. If the military judge finds that disclosure of any portion of the statement identified by the government as classified could reasonably be expected to cause damage to the national security in the degree required to warrant classification under the applicable executive order, statute, or regulation and that such portion of the statement is consistent with the witness' testimony, the military judge shall excise the portion from the statement. With such material excised, the military judge shall then direct delivery of such statement to the accused for use by the accused. If the military judge finds that such portion of the statement is inconsistent with the witness' testimony, the government may move for a proceeding under paragraph (9) of this subdivision.

(iv) Record of trial. If, under this paragraph, any information is withheld from the accused, the accused objects to such withholding, and the trial is continued to an adjudication of guilt of the accused, the entire unaltered text of the relevant documents as well as the government's motion and any materials submitted in support thereof shall be sealed and attached to the record of trial as an appellate exhibit. Such material shall be made available to reviewing authorities in closed proceedings for the purpose of reviewing the determination of the military judge.

(8) Notice of the accused's intention to disclose classified information.

(i) Notice by the accused. If the accused reasonably expects to disclose or to cause the disclosure of classified information in any manner in connection with a court-martial proceeding, the accused shall notify the trial counsel in writing of such intention and file a copy of such notice with the military judge. Such notice shall be given within the time specified by the military judge under paragraph (5) of this subdivision or, if no time has been specified, prior to arraignment of the accused.

(ii) Continuing duty to notify. Whenever the accused learns of classified information not covered by a notice under subparagraph (i) of this paragraph that the accused reasonably expects to disclose at any such proceeding, the accused shall notify the trial counsel and the military judge in writing as soon as possible thereafter.

(iii) Content of notice. The notice required by this paragraph shall include a brief description of the classified information.

(iv) Prohibition against disclosure. The accused may not disclose any information known or believed to be classified until notice has been given under this paragraph and until the government has been afforded a reasonable opportunity to seek a determination under paragraph (9) of this subdivision.

(v) Failure to comply. If the accused fails to comply with the requirements of this paragraph, the military judge may preclude disclosure of any classified information not made the subject of notification and may prohibt the examination by the accused of any witness with respect to any such information.

(9) In camera proceedings for cases involving classified information.

(i) Definition. For purposes of this paragraph, an in camera proceeding is a session under N.Y.S. Military Law, section 130.39(a) from which the public is excluded.

(ii) Motion for in camera proceeding. Within the item specified by the military judge for the filing of a motion under this subdivision, the government may move for an in camera proceeding concerning the use at any proceeding of any classified information. Thereafter, either prior to or during trial, the military judge for good cause shown or otherwise upon a claim of privilege under this subdivision may grant the government leave to move for an in camera proceeding concerning the use of additional classified information.

(iii) Demonstration of national security nature of the information. In order to obtain an in camera proceeding under this subdivision, the government shall submit the classified information for examination only by the military judge and shall demonstrate by affidavit that disclosure of the information reasonably could be expected to cause damage to the national security in the degree required to warrant classification under the applicable executive order, statute, or regulation.

(iv) In camera proceeding.

(a) Procedure. Upon finding that the government has met the standard set forth in subparagraph (iii) of this paragraph with respect to some or all of the classified information at issue, the military judge shall conduct an in camera proceeding. Prior to the in camera proceeding, the government shall provide the accused with notice of the information that will be at issue. This notice shall identify the classified information that will be at issue whenever that information previously has been made available to the accused in connection with proceedings in the same case. The government may describe the information by generic category, in such form as the military judge may approve, rather than identifying the classified information when the government has not previously made the information available to the accused in connection with pretrial proceedings. Following briefing and argument by the parties in the in camera proceeding the military judge shall determine whether the information may be disclosed at the court-martial proceeding. Where the government's motion under this paragraph is filed prior to the proceeding at which disclosure is sought, the military judge shall rule prior to the commencement of the relevant proceeding.

(b) Standard. Classified information is not subject to disclosure under this paragraph unless the information is relevant and necessary to an element of the offense or a legally cognizable defense and is otherwise admissible in evidence.

(c) Ruling. Unless the military judge makes a written determination that the information meets the standard set forth in clause (b) of this subparagraph, the information may not be disclosed or otherwise elicited at a court-martial proceeding. The record of the in camera proceeding shall be sealed and attached to the record of trial as an appellate exhibit. The accused may seek reconsideration of the determination prior to or during trial.

(d) Alternatives to full disclosure. If the military judge makes a determination under this paragraph that would permit disclosure of the information or if the government elects not to contest the relevance, necessity, and admissibility of any classified information, the government may proffer a statement admitting for purposes of the proceeding any relevant facts such information would tend to prove or may submit a portion of summary to be used in lieu of the information. The military judge shall order that such statement, portion, or summary be used by the accused in place of the classified information unless the military judge finds that use of the classified information itself is necessary to afford the accused a fair trail.

(e) Sanctions. If the military judge determines that alternatives to full disclosure may not be used and the government continues to object to disclosure of the information, the military judge shall issue any order that the interests of justice require. Such an order may include an order:

(1) striking or precluding all or part of the testimony of a witness;

(2) declaring a mistrial;

(3) finding against the government on any issue as to which the evidence is relevant and material to the defense;

(4) dismissing the charges, with or without prejudice; or

(5) dismissing the charges or specifications or both which the information relates.

Any such order shall permit the government to avoid the sanction for nondisclosure by permitting the accused to disclose the information at the pertinent court-martial proceeding.

(10) Introduction of classified information.

(i) Classification status. Writings, recordings, and photographs containing classified information may be admitted into evidence without change in their classification status.

(ii) Precautions by the military judge. In order to prevent unnecessary disclosure of classified information, the military judge may order admission into evidence of only part of a writing, recording, or photograph or may order admission into evidence of the whole writing, recording, or photograph with excision of some or all of the classified information contained therein.

(iii) Contents of writing, recording, or photograph. The military judge may permit proof of the contents of a writing, recording, or photograph that contains classified information without requiring introduction into evidence of the original or a duplicate.

(iv) Taking of testimony. During the examination of a witness, the government may object to any question or line of inquiry that may require the witness to disclose classified information not previously found to be relevant and necessary to the defense. Following such an objection, the military judge shall take such suitable action to determine whether the response is admissible as will safeguard against the compromise of any classified information. Such action may include requiring the government to provide the military judge with a proffer of the witness' response to the question or line of inquiry and requiring the accused to provide the military judge with a proffer of the nature of the information the accused seeks to elicit.

(v) Closed session. If counsel for all parties, the military judge, and the members have received appropriate security clearances, the military judge may exclude the public during that portion of the testimony of a witness that discloses classified information.

(vi) Record of trial. The record of trial with respect to any classified matter will be prepared under N.Y.R.C.M. 1103(h) and 1104(b)(D).

(11) Security procedures to safeguard against compromise of classified information disclosed to courts-martial. The Secretary of Defense may prescribe security procedures for protection against the compromise of classified information submitted to courts-martial and appellate authorities.

(f) Government information other than classified information.

(1) General rule of privilege. Except where disclosure is required by an Act of Congress, government information is privileged from disclosure if disclosure would be detrimental to the public interest.

(2) Scope. "Government information" includes official communication and documents and other information within the custody or control of the Federal Government. This rule does not apply to classified information (Mil. R. Evid. 505) or to the identity of an informant (Mil. R. Evid. 507).

(3) Who may claim the privilege. The privilege may be claimed by the head of the executive or military department of government agency concerned. The privilege for investigations of the Inspectors General may be claimed by the authority ordering the investigation or any superior authority. A person who may claim the privilege may authorize a witness or the trial counsel to claim the privilege on his or her behalf. The authority of a witness or the trial counsel to do so is presumed in the absence of evidence to the contrary.

(4) Action prior to referral of charges. Prior to referral of charges, the government shall respond in writing to a request for government information if the privilege in this subdivision is claimed for such information. The government shall:

(i) delete specified items of government information claimed to be privileged from documents made available to the accused;

(ii) substitute a portion or summary of the information for such documents;

(iii) substitute a statement admitting relevant facts that the government information would tend to prove;

(iv) provide the document subject to conditions similar to those set forth in paragraph (7) of this subdivision; or

(v) withhold disclosure if actions under subparagraphs (i) through (iv) of this paragraph cannot be taken without causing identifiable damage to the public interest.

(5) Action after referral of charges. After referral of charges, if a claim of privilege has been made under this subdivision with respect to government information that apparently contains evidence that is relevant and necessary to an element of the offense or a legally cognizable defense and is otherwise admissible in evidence in the court-martial proceeding, the matter shall be reported to the convening authority. The convening authority may:

(i) institute action to obtain the information for use by the military judge in making a determination under paragraph (9) of this subdivision;

(ii) dismiss the charges;

(iii) dismiss the charges or specifications or both to which the information relates; or

(iv) take other action as may be required in the interests of justice.

If, after a reasonable period of time, the information is not provided to the military judge, the military judge shall dismiss the charges or specifications or both to which the information relates.

(6) Pretrial session. At any time after referral of charges and prior to arraignment any party may move for a session under N.Y.S. Military Law section 130.39(a) to consider matters relating to government information that may arise in connection with the trial. Following such motion, or sua sponte, the military judge promptly shall hold a pretrial session under N.Y.S. Military Law section 130.39(a) to establish the timing of requests for discovery, the provision of notice under paragraph (8) of this subdivision, and the initiation of the procedure under paragraph (9). In addition, the military judge may consider any other matters that relate to government information or that may promote a fair and expeditious trial.

(7) Disclosure of government information to the accused. If the government agrees to disclose government information to the accused subsequent to a claim of privilege under this subdivision, the military judge, at the request of the government, shall enter an appropriate protective order to guard against the compromise of the information disclosed to the accused. The terms of any such protective order may include provisions:

(i) prohibiting the disclosure of the information except as authorized by the military judge;

(ii) requiring storage of the material in a manner appropriate for the nature of the material to be disclosed upon reasonable notice;

(iii) requiring controlled access to the material during normal business hours and at other times upon reasonable notice;

(iv) requiring the maintenance of logs recording access by persons authorized by the military judge to have access to the government information in connection with the preparation of the defense;

(v) regulating the making and handling of notes taken from material containing government information; or

(vi) requesting the convening authority to authorize the assignment of government security personnel and the provision of government storage facilities.

(8) Prohibition against disclosure. The accused may not disclose any information known or believed to be subject to a claim of privilege under this subdivision until the government has been afforded a reasonable opportunity to seek a determination under paragraph (9) of this subdivision.

(9) In camera proceedings.

(i) Definition. For the purpose of this subdivision, an in camera proceeding is a closed session under N.Y.S. Military Law section 130.39(a).

(ii) Motion for in camera proceeding. Within the time specified by the military judge for the filing of a motion under this subdivision, the government may move for an in camera proceeding concerning the use at any proceeding of any government information that may be subject to a claim of privilege. Thereafter, either prior to or during trial, the military judge for good cause shown or otherwise upon a claim of privilege may grant the government leave to move for an in camera proceeding concerning the use of additional government information.

(iii) Demonstration of public interest nature of the information. In order to obtain an in camera proceeding under this subdivision, the government shall demonstrate through submission of affidavits and the information for examination only by the military judge that disclosure of the information reasonably could be expected to cause identifiable damage to the public interest.

(iv) In camera proceeding.

(a) Procedure. Upon finding that disclosure of some or all of the information submitted by the government under subparagraph (i) of this paragraph reasonably could be expected to cause identifable damage to the public interest, the military judge shall conduct an in camera proceeding. Prior to the in camera proceeding, the government shall provide the accused with notice of the information that will be at issue. This notice shall identify the information that will be at issue whenever that information previously has been made available to the accused in connection with proceedings in the same case. The government may describe the information by generic category, in such form as the military judge may approve, rather than identifying the specific information of concern to the government when the government has not previously made the information available to the accused in connection with pretrial proceedings. Following briefing and argument by the parties in the in camera proceedings, the military judge shall determine whether the information may be disclosed at the court-martial proceeding at which disclosure is sought, the military judge shall rule prior to commencement of the relevant proceeding.

(b) Standard. Government information is subject to disclosure under this paragraph if the party making the request demonstrates a specific need for information containing evidence that is relevant to the guilt or innocence of the accused and otherwise inadmissible in the court-martial proceeding.

(c) Ruling. Unless the military judge makes a written determination that the information is not subject to disclosure under the standard set forth in clause (b) of this subparagraph, the information may be disclosed at the court-martial proceeding. The record of the in camera proceeding shall be sealed and attached to the record of trial as an appellate exhibit. The accused may seek reconsideration of the determination prior to or during trial.

(d) Sanction. If the military judge makes a determination under this paragraph that permits disclosure of the information and the government continues to object to disclosure of the information, the military judge shall dismiss the charges or specifications or both to which the information relates.

(10) Introduction of government information subject to a claim of privilege.

(i) Precautions by military judge. In order to prevent unnecessary disclosure of government information after there has been a claim of privilege under this subdivision, the military judge may order admission into evidence of only part of a writing, recording, or photograph or may order admission into evidence of the whole writing, recording, or photograph with excision of some or all of the government information contained therein.

(ii) Contents of writing, recording, or photograph. The military judge may permit proof of the contents of a writing, recording, or photograph that contains government information that is the subject of a claim of privilege under this subdivision without requiring introduction into evidence of the original or a duplicate.

(iii) Taking of testimony. During examination of a witness, the prosecution may object to any question or line of inquiry that may require the witness to disclose government information not previously found relevant and necessary to the defense if such information has been or is reasonably likely to be the subject of a claim of privilege under this subdivision. Following such an objection, the military judge shall take such suitable action to determine whether the response is admissible as will safeguard against the compromise of any government information. Such action may include requiring the government to provide the military judge with a proffer of the witness' response to the question or line of inquiry and requiring the accused to provide the military judge with a proffer of the nature of the information the accused seeks to elicit.

(11) Procedures to safeguard against compromise of government information disclosed to courts-martial. The Secretary of Defense may prescribe procedures for protection against the compromise of government information submitted to courts-martial and appellate authorities after a claim of privilege.

(g) Identity of informant.

(1) Rule of privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of an informant. An informant is a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a person whose official duties include the discovery, investigation, or prosecution of crime. Unless otherwise privileged under these rules, the communications of an informant are not privileged except to the extent necessary to prevent disclosure of the informant's identity.

(2) Who may claim the privilege. The privilege may be claimed by an appropriate representative of the State, regardless of whether information was furnished to an officer of the United States or a state or subdivision thereof. The privilege may be claimed by an appropriate representative of a state or subdivision if the information was furnished to an officer thereof, except the privilege shall not be allowed if the prosecution objects.

(3) Exceptions.

(i) Voluntary disclosures; informant as witness. No privilege exists under this subdivision:

(a) if the identity of the informant has been disclosed to those who would have caused to resent the communication by a holder of the privilege or by the informant's own action; or

(b) if the informant appears as a witness for the prosecution.

(ii) Testimony on the issue of guilt or innocence. If a claim of privilege has been made under this subdivision, the military judge shall, upon motion by the accused, determine whether disclosure of the identity of the informant is necessary to the accused's defense on the issue of guilt or innocence. Whether such a necessity exists will depend on the particular circumstances of each case, taking into consideration the offense charge, the possible defense, the possible significance of the informant's testimony, and other relevant factors. If it appears from the evidence in the case or from other showing by a party that an informant may be able to give testimony necessary to the accused's defense on the issue of guilt or innocence, the military judge may make any order required by the interests of justice.

(iii) Legality of obtaining evidence. If a claim of privilege has been made under this subdivision with respect to a motion under Mil. R. Evid. 311, the military judge shall, upon motion of the accused, determine whether disclosure of the identity of the informant is required by the Constitution of the United States, or the State of New York as applied to members of the Armed Forces. In making this determination, the military judge may make any order required by the interests of justice.

(4) Procedures. If a claim of privilege has been made under this subdivision, the military judge may make any order required by the interests of justice. If the military judge determines that disclosure of the identity of the informant is required under the standards set forth in this subdivision, and the prosecution elects not to disclose the identity of the informant, the matter shall be reported to the convening authority. The convening authority may institute action to secure disclosure of the identity of the informant, terminate the proceedings, or take such other action as may be appropriate under the circumstances. If, after a reasonable period of time disclosure is not made, the military judge, sua sponte or upon motion of either counsel and after a hearing if requested by either party, may dismiss the charge or specifications or both to which the information regarding the informant would relate if the military judge determines that further proceedings would materially prejudice a substantial right of the accused.

(h) Political vote. A person has a privilege to refuse to disclose the tenor of the person's vote at a political election conducted by secret ballot unless the vote was cast illegally.

(i) Deliberations of courts and juries. Except as provided in Mil. R. Evid. 606, the deliberations of courts and grand and petit juries are privileged to the extent that such matters are privileged in trial of criminal cases in the United States district courts, but the results of the deliberations are not privileged.

(j) Waiver of privilege by voluntary disclosure.

(1) A person upon whom these rules confer a privilege against disclosure of a confidential matter or communication waives the privilege if the person or person's predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication under such circumstances that it would be inappropriate to allow the claim of privilege. This subdivision does not apply if the disclosure is itself a privileged communication.

(2) Unless testifying voluntarily concerning a privileged matter or communication, an accused who testifies in his or her own behalf or a person who testifies under a grant or promise of immunity does not, merely by reason of testifying, waive a privilege to which he or she may be entitled pertaining to the confidential matter or communication.

(k) Privileged matter disclosed under compulsion or without opportunity to claim privilege.

(1) Evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if disclosure was compelled erroneously or was made without an opportunity for the holder of the privilege to claim the privilege.

(2) The telephonic transmission of information otherwise privileged under these rules does not affect its privileged character. Use of electronic means of communication other than the telephone for transmission of information otherwise privileged under these rules does not affect the privileged character of such information if use of such means of communication is necessary and in furtherance of the communication.

(l) Comment upon or inference from claim of privilege; instruction.

(1) Comment or inference not permitted.

(i) The claim of a privilege by the accused whether in the present proceeding or upon a prior occasion is not a proper subject of comment by the military judge or counsel for any party. No inference may be drawn therefrom.

(ii) The claim of a privilege by a person other than the accused whether in the present proceeding or upon a prior occasion normally is not a proper subject of comment by the military judge or counsel for any party. An adverse inference may not be drawn therefrom except when determined by the military judge to be required by the interests of justice.

(2) Claiming privilege without knowledge of members. In a trial before a court-martial with members, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the members. This paragraph does not apply to a special court- martial without a military judge.

(3) Instruction. Upon request, any party against whom the members might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom except as provided in subparagraph (1)(ii) of this subdivision.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 517.5